IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51184

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

ELI TORRES; ALFREDO TAPIA, III, also known as Naco, 

also known as Alfredo Tapia, 

 Defendants - Appellants 

Appeals from the United States District Court 

for the Western District of Texas 

USDC No. 2:11-CR-1780-14

Before DAVIS, JONES, and CLEMENT, Circuit Judges. 

EDITH H. JONES, Circuit Judge:*

This appeal arises from the conviction of two defendants for participating 

in drug distribution and firearms offenses as members and conspirators in a 

prison gang, the Texas Syndicate. The defendants raise several challenges to 

their sentences and convictions. We find no reversible error and affirm. 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 1, 2017

Lyle W. Cayce

Clerk

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BACKGROUND 

The FBI and other local law enforcement agencies began investigating a 

prison gang, the Texas Syndicate (“TS”), in August 2009 for narcotics 

distribution and murder carried out within and outside the Texas prison 

system. In August 2011, the district court granted the Government’s 

application to authorize the FBI to intercept the wire and electronic 

communications of Eli Torres, a leader in the TS, as well as other targeted 

individuals. 

 Alfredo Tapia, III, and fourteen codefendants were charged in the 

original indictment with conspiracy to possess with intent to distribute 500 

grams or more of cocaine (Count One) and with conspiracy to possess with 

intent to distribute 100 kilograms or more of marijuana (Count Two). Torres 

was charged in a superseding indictment with conspiracy to possess with 

intent to distribute 500 grams or more of cocaine (Count One) and distribution 

of 500 grams or more of cocaine within 1000 feet of a school (Count Two). 

The following TS members or associates pled guilty and testified against 

Tapia and Torres. Mark Anthony Vela, a TS prospect,1 was the main supplier 

of the narcotics in Uvalde and surrounding Texas counties. Charles 

Quintanilla, a TS associate, was a drug dealer who purchased marijuana and 

cocaine from Vela for several years. Ervey Sanchez was a full TS member who 

supplied cocaine to Torres for resale and also supplied Vela. Finally, Thomas 

Cuellar, a former Sheriff’s Deputy and Vela’s brother-in-law, provided 

information on law enforcement efforts to Vela, obtained cocaine from both 

Vela and Tapia, and observed Tapia storing drugs for Vela. 

 

1 TS operates under a specified hierarchy of leadership consisting of a chairman, a 

lieutenant, and a sergeant. “Carnals” or “soldiers” are non-ranking members who carry out 

many of the criminal activities, and “prospects” are individuals attempting to become carnals. 

Prospects are typically used to conduct the most violent activities on behalf of the TS. 

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Torres filed a motion to suppress the evidence obtained from the 

electronic surveillance and for a Franks hearing to challenge the affidavit that 

supported the Government’s wiretap application. The district court denied the 

motion. Torres and Tapia were tried together before a jury and were convicted 

as charged. 

The district court enhanced Tapia’s sentence for, among other things, 

obstruction of justice, possession of a dangerous weapon, and use of violence. 

With a total offense level of 40 and a criminal history category of I, the court 

granted Tapia a downward variance from a guidelines range of imprisonment 

of 292 to 365 months and sentenced him to 240 months of imprisonment on 

each count, to be served concurrently. The court also imposed a $3,000 fine 

and five-years of supervised release. The district court sentenced Torres to 300 

months of imprisonment on each count, to be served concurrently, a $4,000 

fine, and an eight-year term of supervised release. Torres and Tapia timely 

appealed. 

DISCUSSION

I. Tapia 

Tapia challenges only the district court’s adoption of three enhancements 

to his base offense level for sentencing. This court reviews the district court’s 

application of the Sentencing Guidelines de novo and its findings of fact for 

clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 

2008). 

A. Obstruction of Justice 

Tapia challenges the two-level enhancement under U.S.S.G. § 3C1.1 for 

obstruction of justice. He asserts that although his testimony contradicts the 

testimony presented by the Government, and the jury ultimately found him 

guilty, this is insufficient for a finding of perjury. Tapia points to testimony in 

the record indicating that he was only a drug user and not a drug dealer. He 

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also contends that because he filed a written objection to the enhancement, the 

district court should have addressed each element of the perjury in a separate 

and clear finding. 

Tapia objected to this enhancement in the trial court, but because he did 

not argue that the district court failed to make the separate findings on each 

claimed incident of perjury, this court’s review is for plain error. “To preserve 

error, an objection must be sufficiently specific to alert the district court to the 

nature of the alleged error and to provide an opportunity for correction.” 

United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009); United States v. 

Martinez, 547 F. App’x 559, 563 (5th Cir. 2013). To demonstrate plain error, 

however, Tapia must show, inter alia, that the district court’s error is clear or 

obvious and affects his substantial rights. Puckett v. United States, 556 U.S. 

129, 135, 129 S. Ct. 1423, 1429 (2009). 

Section 3C1.1 provides for a two-level increase in the offense level if “the 

defendant willfully obstructed or impeded, or attempted to obstruct or impede, 

the administration of justice with respect to the investigation, prosecution, or 

sentencing of the instant offense of conviction” and this conduct relates to “the 

defendant’s offense of conviction.” U.S.S.G. § 3C1.1. The enhancement is 

warranted if the defendant commits perjury. § 3C1.1, comment n.4(b). A 

defendant commits perjury if he gives “false testimony concerning a material 

matter with the willful intent to provide false testimony, rather than as a 

result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 

507 U.S. 87, 94, 113 S. Ct. 1111, 1116 (1993). 

Preferably, the district court should make a separate and clear finding

on each element of perjury, but a finding of obstruction “that encompasses all 

of the factual predicates for a finding of perjury” is sufficient. Id. at 95, 1117. 

“The sentencing court need not expressly find that the false testimony 

concerned a material matter; it is enough that materiality is obvious.” United 

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States v. Perez-Solis, 709 F.3d 453, 470 (5th Cir. 2013) (internal quotation 

marks omitted). Nor must a district court’s finding in support of an 

obstruction-of-justice enhancement include an explicit finding of willfulness. 

United States v. Miller, 607 F.3d 144, 152 (5th Cir. 2010). 

In a proper use of its discretion, the district court adopted the legal and 

factual findings of the PSR, which outlined testimony the probation officer 

deemed contradictory to Tapia’s own testimony. United States v. Smith, 

804 F.3d 724, 737 (5th Cir. 2015); United States v. Edwards, 65 F.3d 430, 432 

(5th Cir. 1995) (“[A] district court has wide discretion in determining which 

evidence to consider and which testimony to credit” at sentencing). The court 

drew attention to the PSR’s discussion of the intercepted wire and electronic 

communications between Vela and Tapia, which concerned Tapia’s role in the

drug conspiracy, including his role in submitting receipts and collecting money

for Vela. The court also noted that pen register data demonstrated Tapia’s 

regular contact with Vela over 20 months. The court discussed the trial 

testimony that Tapia had acted as a lookout at his residence while a man was 

held at gunpoint by a coconspirator for an unpaid drug debt. The court’s 

adopted findings conflict with Tapia’s testimony that he merely used drugs, 

but was not involved in drug distribution. The court committed no clear error 

in finding that Tapia’s material disclaimers were not worthy of credence given 

the weight of the contradictory witness testimony, the intercepted wire and 

electronic communications, and the jury’s verdict. United States v. Smith, 804 

F.3d 724, 737 (5th Cir. 2015); United States v. Flores, 640 F.3d 638, 644 (5th 

Cir. 2011). We conclude that the district court’s application of § 3C1.1 was not 

erroneous. 

B. Possession of a Firearm 

Next, Tapia challenges the two-level enhancement for possession of a 

firearm in furtherance of a conspiracy. He argues that the Government failed 

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to prove by a preponderance of the evidence that a weapon was possessed

because the uncorroborated testimony of others conflicted with his own 

testimony. 

Section 2D1.1(b)(1) provides that the base offense level of a defendant 

convicted of certain drug-related offenses should be increased by two-levels if 

“a dangerous weapon (including a firearm) was possessed.” U.S.S.G. 

§ 2D1.1(b)(1). Because a defendant may be held responsible for all reasonably 

foreseeable acts of the conspiracy, § 1B1.3(a)(1)(B), “a sentencing court may 

often infer foreseeability from a coconspirator’s knowing possession of a 

weapon.” United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010)

(internal quotation marks and citation omitted). Whether a dangerous weapon 

was possessed for purposes of the enhancement is a fact question reviewed for 

clear error, while the legal sufficiency of the facts found is a question reviewed 

de novo. Id. 

The PSR relied on trial testimony describing how multiple firearms were 

possessed in furtherance of the conspiracy. Vela told his cellmate Sanchez 

following their arrests that he had asked Tapia to move firearms that Tapia 

had hidden for him. Further, Quintanilla testified that Tapia acted as a 

lookout at Tapia’s own residence while another TS conspirator held 

Quintanilla’s nephew Javier Garcia, Jr. at gunpoint until he agreed to give 

them a 55” TV to repay his TS drug debt. Moreover, TS carnals and an 

associate used firearms in three murders, a TS member sold a stolen rifle, and 

Sanchez sold a handgun. 

The district court’s finding that Tapia acted as a lookout while a debtor 

was held at gunpoint was not clearly erroneous as it was supported by 

Quintanilla’s testimony, which the court was entitled to credit. United States 

v. Harris, 740 F.3d 956, 967 (5th Cir. 2014); Edwards, 65 F. 3d at 432. Tapia 

had the burden of showing that it was clearly improbable that the weapons 

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possessed by his coconspirators were connected with the offense. United States 

v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010). In addition, Tapia failed to address 

the PSR’s recitation that multiple firearms were possessed in furtherance of 

the conspiracy; consequently, he has not demonstrated that the district court 

erred in assessing the two-level firearms enhancement. 

C. Use or Credible Threat of Violence 

Tapia contends that the district court’s two-level enhancement for a 

credible threat to use violence against Javier Garcia, Jr. was solely based on

Quintanilla’s uncorroborated testimony, which lacked sufficient indicia of 

reliability. 

 The district court may enhance a sentence two levels “[i]f the defendant 

used violence, made a credible threat to use violence, or directed the use of 

violence.” § 2D1.1(b)(2). Relevant conduct includes “in the case of a jointly 

undertaken criminal activity . . . all acts and omissions of others that were . . . 

reasonably foreseeable in connection with that criminal activity.” 

§ 1B1.3(a)(1)(B)(iii). 

The PSR recommended imposing this additional enhancement based on 

the incident where a drug debtor was held at gunpoint and threatened in 

Tapia’s backyard. Information in the PSR is “presumed reliable and may be

adopted by the district court without further inquiry if the defendant fails to 

demonstrate by competent rebuttal evidence that the information is materially 

untrue, inaccurate, or unreliable.” United States v. Sanchez, 850 F.3d 767, 769 

(5th Cir. 2017) (internal citations and quotation marks omitted). That 

Quintanilla’s testimony about this incident was uncorroborated is not fatal, 

especially given that he was subject to cross examination at trial. United 

States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). The district court was 

entitled to credit Quintanilla’s testimony, and was not required to accept

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Tapia’s “self-serving account of his role in the drug organization.” United 

States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989). 

Tapia has not shown that the information the district court relied on is 

materially untrue. United States v. Young, 981 F.2d 180, 185 (5th Cir. 1992). 

The threat and use of violence was reasonably foreseeable to those associated 

with the TS. Tapia interacted with several TS members over a long period of 

time; he distributed, received, and stored drugs, and received drug money on 

behalf of members. That at some point violence, committed by this gang for 

whom violence and intimidation are a modus operandi, would occur in Tapia’s 

presence was reasonably foreseeable. The district court did not err. 

D. Cautionary Instructions 

Tapia oddly contends that each enhancement was somehow improper 

because the district court should have issued a jury instruction cautioning the 

jury against relying on the testimony of Sanchez, Quintanilla, and Cuellar to 

the extent it was uncorroborated. In fact, the district court told the jury that 

the Government had called as witnesses alleged accomplices who had entered 

into favorable plea agreements. The court instructed the jury that such

testimony should be received “with caution and weighed with great care,” and

the jury should not convict a defendant based on the unsupported testimony of 

an alleged accomplice unless it believed the testimony beyond a reasonable 

doubt. See Tillery v. United States, 411 F.2d 644, 647 (5th Cir. 1969). More to 

the point, however, the sufficiency of these cautionary instructions has nothing 

to do with the court’s credibility assessments for sentencing purposes. 

II. Torres 

A. Wiretap Order 

Torres argues that the district court erred when, in August 2011, it 

granted the Government’s request and authorized the interception of wire and 

electronic communications from his cell phone without a showing of the 

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requisite necessity. He contends that the change in TS leadership that had 

occurred in June 2011 did not meet the necessity requirement because the 

identity of these officers had been previously known. He objects that the 

wiretap was authorized in the last five weeks of a two-year investigation after 

traditional techniques already exposed his involvement and the scope of the 

conspiracy. 

This court reviews the district court’s issuance of a wiretap order for 

clear error and reviews de novo whether the Government satisfied the 

“necessity requirement” under 18 U.S.C. § 2518(1)(c). United States v. Kelley, 

140 F.3d 596, 604 (5th Cir. 1998). 

An application seeking authorization for a wiretap must show probable 

cause and must state “whether or not other investigative procedures have been 

tried and failed or why they reasonably appear to be unlikely to succeed if tried 

or to be too dangerous.” § 2518(3)(a), (1)(c). Consequently, a judge must find 

that the Government has made the required showing of necessity. § 2518(3)(c). 

This necessity requirement is not meant to “foreclose electronic surveillance 

until every other imaginable method of investigation has been unsuccessfully 

attempted.” United States v. Webster, 734 F.2d 1048, 1055 (5th Cir. 1984). 

Rather, it requires a showing that “in the particular investigation normal 

investigative techniques employing a normal amount of resources have failed 

to make the case within a reasonable period of time.” Kelley, 140 F.3d at 605

(internal quotation marks and citation omitted). The Government therefore 

does not have to show that it has exhausted every conceivable option before a 

wiretap may be approved. Id. 

The Government applied to tap the cell phones of Torres, Sanchez, and 

Vela, which it asserted were being used to contact numerous “interceptees.” 

The Government supported its application with a 106-page affidavit of FBI 

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Special Agent Katherine Gutierrez, who attested that Torres, Vela, and 

Sanchez were engaged in narcotics activity. 

Agent Gutierrez stated in the affidavit that several investigative 

techniques had been attempted yet failed, while other techniques appeared 

unlikely to achieve the investigation’s goals and were too dangerous to employ. 

A very brief summary of the affidavit includes that Gutierrez noted that the 

FBI analyzed pen register and air time activity on Torres’s phone, which 

showed that Torres was in contact with other known TS members and 

associates, but Agent Gutierrez could not access the substance of the 

conversations. Although the FBI had secured the cooperation of confidential 

informants, the informants did not know all of the accomplices with whom the 

interceptees associated, were unaware of all of the codes that conspiracy 

members used to identify one another, and did not know many telephone 

numbers used by the participants. There was no guarantee that the 

confidential informants referenced in the affidavit would continue to cooperate. 

Physical surveillance and trash searches of the targeted individuals were also 

of limited value because of the remoteness of Uvalde and Hondo and their 

small populations—anyone from out-of-town was readily identifiable by the 

targeted individuals. Nor was the use of undercover agents adequate. Due to 

the secretive nature of the TS, it was dangerous for an undercover officer to 

attempt to infiltrate the upper echelons of the organization. The danger was 

compounded because Sherriff’s Deputy Cuellar had been leaking pending law 

enforcement operations to Vela. 

This court has affirmed wiretap orders under similar circumstances 

involving investigations into large criminal conspiracies. United States v. 

Krout, 66 F.3d 1420, 1425 (5th Cir. 1995) (upholding a wiretap order based on 

affiant’s statement that undercover agents could not infiltrate the conspiracy); 

Webster, 734 F.2d at 1054–55 (upholding a wiretap order based on affiant’s 

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statement that physical surveillance had not disclosed the target’s drug source, 

continued surveillance carried a risk of detection, and infiltration was risky 

and dangerous). Torres ignores Agent Gutierrez’s assertions that the new TS 

leaders—including himself—were more violent than the previous leaders, that 

informants did not know all of Torres’s accomplices, and that air time and pen 

register activity did not provide the substance of communications. Agent 

Gutierrez’s affidavit therefore clearly satisfies the necessity requirement. See

Krout, 66 F.3d at 1425; Webster, 734 F.2d at 1055. 

B. Franks Hearing 

Torres argues that the district court erred when it denied his request for 

a Franks hearing. Torres suggests that Agent Gutierrez’s misrepresented the 

need for electronic surveillance because electronic surveillance was actually 

only possible for 16 hours out of the day. Torres asserts that this “critical fact” 

was omitted from her affidavit.

Because Torres failed to put the district court on notice of his assertion 

that Gutierrez omitted critical information about the availability of real time

information, this court reviews for plain error. United States v. Bullock, 

71 F.3d 171, 179 (5th Cir. 1995). 

Under Franks, a defendant is entitled to a hearing if he demonstrates 

that a “false statement knowingly and intentionally, or with reckless disregard 

for the truth, was included by the affiant in the warrant affidavit, and if the 

allegedly false statement is necessary to the finding of probable cause.” Franks

v. Delaware, 438 U.S. 154, 155–56, 98 S. Ct. 2674, 2676 (1978). “There must 

be allegations of deliberate falsehood or of reckless disregard for the truth, and 

those allegations must be accompanied by an offer of proof.” Id. at 171, 2684. 

An omission may amount to improper government conduct only if the omission 

is material and the defendant shows that the affiant excluded material

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information “with the intent to mislead the magistrate.” United States v. 

Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995). 

The information in Agent Gutierrez’s affidavit supported a probable 

cause finding that Torres used his cell phone to advance the distribution of 

narcotics and to effectuate murder on behalf of the TS. See United States v. 

Froman, 355 F.3d 882, 889 (5th Cir. 2004). Gutierrez’s failure to state that 24-

hour surveillance was authorized but could only operate 16 hours a day 

because of the need for translation assistance is a small detail of the 

Government’s operation, not a material omission in the affidavit, and does not 

evince an intent to mislead. See Tomblin, 46 F.3d at 1377. The district court 

properly denied the Franks hearing. 

CONCLUSION 

For the foregoing reasons, we find no reversible error of fact or law. The 

convictions and sentences of appellants are AFFIRMED.

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